Weld Sheriff's refusal to enforce gun rules within letter of the law

By Ryan ParkerThe Denver Post

Posted:
03/18/2013 03:38:05 PM MDT

Updated:
03/19/2013 09:58:54 AM MDT

Weld County Sheriff John Cooke, center, backed by a group of fellow sheriffs, testifies against proposed gun control legislation in the Colorado Legislature at the State Capitol in Denver on Monday March 4, 2013. (Brennan Linsley, The Associated Press)

Weld County Sheriff John Cooke says he won't enforce new gun-control measures, and legal experts say he won't be breaking the law.

Prioritizing how laws are enforced is the prerogative of local police chiefs and sheriffs. A lawsuit could be filed compelling Cooke or any other sheriff who declines to apply gun laws now on their way to the governor's desk, but it is the voters who ultimately will decide their fates.

"He couldn't be punished for not upholding these laws, but he could be ordered by the court to uphold them," said Richard Collins, a University of Colorado at Boulder law professor. "Whether anyone would bring a lawsuit to get the court to order him is pretty uncertain."

State Sen. Morgan Carroll, D-Aurora, Senate sponsor of the universal-background-checks bill, said a sheriff unwilling or unable to fulfill the duties of the position should step down.

"They are putting politics above their job," she said.

Gov. John Hickenlooper is expected to sign at least two new gun laws Wednesday — universal background checks and weapon-magazine capacity limits. A third, enacting fees for background checks, has been sent to him. Bills prohibiting domestic abusers from having access to guns and banning online-only certification for concealed-carry permits are still in the legislature.

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"Why put the effort into enforcing a law that is unenforceable?" Cooke told The Denver Post on Monday. "With all of the other crimes that are going on, I don't have the manpower, the resources or the desire to enforce laws like that."

Cooke said this is the first time in his law enforcement career that he has made the decision to not enforce a law.

However, Cooke said, if a person who uses a gun outfitted with a magazine able to hold more than 15 rounds in a crime, that person will be charged under the new law.

Sheriffs in 62 of Colorado's 64 counties are elected. As long as the elected official isn't violating the U.S. or Colorado constitutions, the ramification for noncompliance is a recall or being voted out of office, said Dave Kopel, a professor at the University of Denver law school and author of a law-school textbook on firearms law and policy.

In the last election, Cooke won with 76 percent of the vote, he said. He is in his third term and said he plans to run in 2014 if a Weld County court case dealing with county term limits is settled in his favor.

Of course, if most of the constituents agree with Cooke's decision, it could also make him more popular, said Kopel, who is also on staff at the Independence Institute think tank.

"His primary obligation is to obey the U.S. Constitution and the Colorado Constitution, and he appears to be especially conscientious in making sure he does so," Kopel said.

While it may be one of the first instances related to gun-control measures, sheriffs in the past have refused to uphold laws they did not agree with, such as prohibition, Jim Crow and immigration, Kopel said.

Still, Cooke's noncompliance announcement is unusual, Collins said.

"When this happens, it is much more common an executive officer quietly fails to enforce the law," Collins said.

Other sheriffs, including Terry Maketa of El Paso County and Justin Smith of Larimer County, have also been adamant critics of the new gun-control legislation.

During a recent town-hall meeting in Colorado Springs, Maketa said he has been in discussions about a lawsuit against the state to block the new laws.

"Chiefs and sheriffs all took an oath to uphold the laws of the state," said Carolyn Tyler, spokeswoman for Colorado Attorney General John Suthers. "However, since Colorado is a local-control state, chiefs and sheriffs should work with local communities and supervisors to determine which laws to prioritize for enforcement."

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